The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiffs, Stacy Butler and Carol Sojda, bring this action under 42 U.S.C. § 1983 alleging that the City of Batavia and several of its police officers (collectively, the "Batavia Defendants") retaliated against them in violation of their First Amendment rights. Plaintiffs also bring a state-law claim against Richard and Victoria Mager, alleging negligent infliction of emotional distress. Presently before this Court are each Defendant's Motion to Dismiss and Plaintiffs' Motion for an Extension of Time to File Service of Process. (Docket Nos. 17, 18, 26.) The Batavia Defendants move for dismissal under Fed. R. Civ. P. 12(b)(4), for insufficient process, and under Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. The Magers request that if this Court were to dismiss the federal claims against the Batavia Defendants, it also dismiss the state claim against them. For the following reasons, both the Batavia Defendants' and Mager's Motions to Dismiss are granted and Plaintiffs' Motion is denied as moot.
Plaintiffs, a lesbian couple, purchased a home together in the City of Batavia in late 2002. (Complaint,¶ 15; Docket No. 1.) According to the complaint, their neighbors, the Magers, consistently harassed and generally made Plaintiffs feel unwelcome in the neighborhood. (Id., ¶ 21.) Despite Plaintiffs' complaints, the City of Batavia Police Department took no action against the Magers. (Id.) Growing increasingly frustrated, Plaintiffs filed an action in this Court on November 27, 2006 against the same set of Defendants as named in this action. See Butler v. City of Batavia, 545 F. Supp. 2d 289 (W.D.N.Y. 2008). That complaint, alleging discrimination and retaliation, was dismissed by this Court on March 3, 2008. Id. The Second Circuit affirmed the decision the following year. Fed. App'x 21 (2d Cir. 2009) (summary order).
In this action, Plaintiffs allege that Defendants retaliated against them for filing that lawsuit. Specifically, Plaintiffs allege that the Batavia Defendants "consistently drove by Plaintiffs' home slowly, staring at Plaintiffs' residence," and that once, "while walking on East Side Avenue, Plaintiffs were followed by a Batavia City Police car which squealed its tires as it deliberately accelerated past the Plaintiffs." (Complaint, ¶¶ 27, 29.)*fn3
They also allege that the Magers continued to harass them after the lawsuit by revving their engines in front of their home and throwing garbage and stones in their yard. (Id., ¶ 31.) Further, on February 14, 2010, the Plaintiffs found a decapitated squirrel in their driveway -- the Plaintiffs believe that the Magers are to blame for this. (Id., ¶ 32.)
Because of this treatment, including the Batavia Defendants' "stalking" behavior, Plaintiffs were forced to sell their home and move out of Batavia. (Id., ¶ 34.)
Plaintiffs' filed their complaint on August 20, 2010. (Docket No. 1.) The Magers answered on February 24, 2011 and filed an amended answer March 1, 2011. (Docket Nos. 9, 13.) By stipulation, Christopher Mager was dismissed as a party on March 3, 2011. (Docket No. 16.) The Batavia Defendants moved to dismiss the complaint two weeks later on March 17, 2011. (Docket No. 17.) The Magers followed suit the next day. (Docket No. 18.) On May 5, 2011, Plaintiffs' moved for an extension of time to file service of process. (Docket No. 26.) This Court took these motions under advisement without oral argument.
A. Motion to Dismiss Standard -- Rule 12(b)(6)
Rule 12 (b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed. R. Civ. P. 8(a)(2). But the plain statement must "possess enough heft to show that the pleader is entitled to ...